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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

                                                                                                CASE NO: 04184/2023

 

In the matter between:

 

G4S AVIATION SECURITY SA (PTY) LTD	Applicant
and
AIRPORTS COMPANY SOUTH AFRICA SOC LIMITED	First Respondent
BIDVEST PROTEA COIN (PTY) LTD	Second Respondent
EAGLE EYE SECURITY SPECIALISTS (PTY) LTD	Third Respondent
RESHEBILE AVIATION AND PROTECTION SERVICES (PTY) LTD	Fourth Respondent
SSG SECURITY SOLUTIONS (PTY) LTD	Fifth Respondent
MCC SECURITY AND PROJECTS CC	Sixth Respondent
MZANSI SECUREFIRE GROUP (PTY) LTD	Seventh Respondent
TYEKS ECURITY SERVICES CC	Eighth Respondent
ENVIROMONGZ (PTY) LTD	Nineth Respondent
and
	CASE NO. 107270/2023
In the matter between:
VENUS SECURITY INTERNATIONAL (PTY) LTD	Applicant
and
AIRPORTS COMPANY SOUTH AFRICA SOC LIMITED	First Respondent
THE NATIONAL TREASURY	Second Respondent
EAGLE EYE SECURITY SPECIALISTS (PTY) LTD	Third Respondent
RESHEBILE AVIATION AND PROTECTION SERVICES (PTY) LTD	Fourth Respondent
BIDVEST PROTEA COIN (PTY) LTD	Fifth Respondent
ENVIROMONGZ (PTY) LTD	Sixth Respondent
TYEKS ECURITY SERVICES CC	Seventh Respondent
and
	CASE NO. 106910/2023
In the matter between:
FIDELITY SECURITY SERVICES (PTY) LTD	Applicant
and
AIRPORTS COMPANY SOUTH AFRICA SOC LIMITED	First Respondent
EAGLE EYE SECURITY SPECIALISTS (PTY) LTD	Second Respondent
RESHEBILE AVIATION AND PROTECTION SERVICES (PTY) LTD	Third Respondent
BIDVEST PROTEA COIN (PTY) LTD	Fourth Respondent
ENVIROMONGZ (PTY) LTD	Fifth Respondent
MZANSI SECUREFIRE GROUP (PTY) LTD	Sixth Respondent
TYEKS ECURITY SERVICES CC	Seventh Respondent
SSG SECURITY SOLUTIONS (PTY) LTD	Eighth Respondent
MCC SECURITY AND PROJECTS CC	Nineth Respondent

 

JUDGMENT

EPSTEIN AJ

1.            Three Applicants in three separate consolidated applications apply by way of urgency for interim interdictory relief against Airports Company of South Africa SOC Limited (“ACSA”) in which they seek the suspension and implementation of any acts or steps taken by ACSA pursuant to a procurement process arising from a tender described as COR7070/2023/RFP (“the Tender”), and related relief. The Applicants are all aggrieved unsuccessful tenderers in the Tender process. The purpose of the Tender was to ensure that ACSA has a panel of licensed security guarding service providers who can provide, inter alia, general security services, special tactical security services, baggage screening services and VIP protection.

2.            The applications were originally set down to be heard in October 2023. Following an approach made to the Honourable Deputy Judge President Sutherland, a directive (“the Directive”) was issued on the basis of an undertaking given by ACSA that it would retain the status quo and not implement the outcome of the Tender until finalisation of the urgent applications set down to be heard on 28 and 29 November 2023.

3.            By the time the matter was heard before me the three Applicants and ACSA had exchanged founding, answering and replying affidavits^[1] and had filed heads of argument pursuant to the Directive.

4.            Whilst a number of parties have been cited by the Applicants, the protagonists are the following:

The Applicants

4.1.             G4S Aviation Security SA (Pty) Ltd (“G4S”) (Case No. 2023/04184).

4.2.             Venus Security International (Pty) Ltd (“Venus”) (Case No. 107270/2023).

4.3.             Fidelity Security Services (Pty) Ltd (“Fidelity”) (Case No. 106910/2023).

The Respondent

4.4.             ACSA, a national key point as defined in National Key Points Act 102 of 1980, has been cited by all the Applicants as the First Respondent.

4.5.             There is commonality in the citation by the Applicants of most of the Respondents, but not in the same order. Some Respondents filed notices to abide, whilst others simply did not file intentions to oppose.^[2] ACSA is the only Respondent opposing the applications for an interim interdict.

Mzansi Security (Pty) Ltd (“Mzansi”)

5.            Mzansi was cited as a Respondent by all of the Applicants. This Respondent filed a notice to abide.^[3]

6.            Although Mzansi chose not to oppose the application, it nevertheless, in the G4S application, filed two affidavits. This is not catered for in the Rules of Court which do not allow for the filing of what are sometimes  termed explanatory affidavits. (G4S nevertheless chose to respond to the two affidavits).

7.            Parties who receive such explanatory affidavits face a dilemma: on the one hand, whether they should be ignored with the risk that left unanswered, they may be read by the presiding judge which could, even unwittingly, have an influence on the outcome of the matter; on the other hand, it is of course open to a litigant to serve a Rule 30 Notice on the basis that the filing of such affidavits constitutes an irregular proceeding. The latter approach is bound to cause delay and unnecessary costs to be incurred.

8.            It seems that there is a growing tendency for cited parties who are not opposing the particular application, to file an explanatory affidavit in the hope of avoiding an adverse costs order.

9.            There are of course circumstances where an explanatory affidavit is appropriate and possibly even necessary. I envisage, by way of example, the filing of explanatory or status affidavits by the Master of the High Court in matters falling under the Master’s domain, or by the Registrar of Deeds in matters concerning property rights or transfers. Needless to say, there are many other instances. Nevertheless, this does not entitle a protagonist litigant to adopt this practice, which is to be deprecated. Parties must act within the confines of the Rules of Court or face the risk of the imposition of an adverse costs order, perhaps even punitive.

Quatro Security Services (Pty) Ltd (“Quatro”)

10.         A further company, Quatro served an application to intervene as a party. According to the founding affidavit, the purpose of the intervention is to enable Quatro to oppose the relief sought by the Applicants which is aimed at compelling ACSA to continue to utilise the security services of the relevant Applicants.

11.         Quatro stated in its intervention application that it did not intend to deliver any affidavits in response to the applications, but merely sought an opportunity to advance argument at the hearing of the matters. Quatro stated that it timeously submitted a bid prior to the closing date of the Tender. Quatro was unsuccessful in its bid and indicated that it intends to institute separate review proceedings against ACSA’s decision to reject its tender.

12.         Quatro’s application to intervene was originally opposed, but during the hearing, the opposition was withdrawn on the basis that Quatro would be confined to only arguing against the relief referred to paragraph 10 above. An order allowing the intervention was granted.

13.         As stated, the interdict applications were brought by way of urgency. G4S and Fidelity asked for interdictory relief pending Part B to their notices of motion, which is a review the Tender. Venus has sought an interdict pending the outcome of a review application which, I was informed from the bar, has now been launched. That review application did not serve before me.

URGENCY

14.         The Respondent contested the urgency of the applications. I have referred earlier to the undertaking given by ACSA pending the review.^[4] As noted above, by the time the matter was heard the three Applicants and ACSA (as well as Quatro) had exchanged founding, answering and replying affidavits and had filed heads of argument pursuant to the directive of the honourable Deputy Judge President. Further, prior to the matter commencing, I had familiarised myself with the voluminous affidavits and heads of argument.

15.         Urgency is not only a matter for the parties, but is also a matter for the court. All the parties were ready to proceed with argument. Even if there were grounds to oppose the argument on urgency, it would have been a waste of judicial resources in the present circumstances to burden a future court with this matter. In any event, there seemed little, if any persistence by ACSA regarding its objection to the issue of urgency, and I ruled that the matter may be heard as an urgent application.

BACKGROUND

16.         ACSA, a state-owned company, is responsible for security at airports operated by it.

17.         Relevant portions of the RFB require repetition.

17.1.          The RFB describes the background and purpose of the Tender.

“2.1        Background

This tender is composed of two phases and a two-envelope system shall be applied:

Phase 1: Airports Company South Africa SOC Limited (“ACSA”) wishes to compile a Panel of Licensed Security (Guarding) Services compromising of fourteen (14) Security Service providers for the provision of Security (Guarding) Services at all ACSA airports in the Republic of South Africa in accordance with ACSA’s requirements from time-to-time for a period of five (5) years. ACSA’s terms and conditions shall apply to the agreement with the successful bidders, the successful service providers for phase 1 of this bid, will be granted a License Concession to operate and perform work for ACSA and other stakeholders operating at ACSA operated airports.

Phase 2: Airports Company South Africa SOC Limited (“ACSA”) wishes to appoint Security companies from Panel of Licensed Security (Guarding) Services companies to offer Security Services to ACSA for a period of five (5) years. ACSA’s terms and conditions shall apply to the agreement with the successful bidders, the successful service providers/s for phase 2 of this bid, will be granted a contract/s to offer Security Services for ACSA.

2.2         Purpose of this Tender

ACSA requires the prospective service provider to offer and deliver general security services, Specialised tactical security services, Baggage Screening Services, Specialised Security Services for high value goods/cargo, Protection of VIP and VVIP, and other associated services deemed associated and relevant as approved by ACSA. The deliverables shall be in relation to ACSA airports locations pursuant to the mandate set out in the National Key Point Act/Critical Infrastructure Protection Act (CIPA) 8 of 2019 (as amended), National Aviation Security Program and to safe guard civil aviation facilities, aerodromes, aircrafts and airports. For this purpose, the Bidders shall achieve the deliverables and perform the services described in this scope of works in conformity with:

(i)                 The terms and condition of this bid;

(ii)              The services and related requirements processes, procedures and operations prescribed in the Standard Operating Procedures as may be amended by ACSA and/or relevant stakeholder from time to time by amending notice;

(iii)            The minimum requirements for Bidders prescribed in the service and/or screening Standards as may be amended by ACSA from time to time by amending notice and;

(iv)             The Bidders shall employ security personnel to perform security services at ACSA airport locations.

The Bidders shall manage the performance of their security personnel and assigned obligations, activities and responsibilities while being accountable to ACSA as a concession client in delivering security, screening and other related services and deliverables that are effective, efficient, and consistent and in the public interest.

ACSA’s terms and conditions shall apply in accordance with the district agreements which shall be concluded with the preferred service provider(s) once the contract(s) is awarded.”

17.2.          The RFB specified the following in regard to the Bid Responses:

17.2.1.            Bid Responses must be strictly prepared and returned in accordance with the Tender document.

17.2.2.            Bidders will be disqualified where they have not materially complied with any of ACSA’s requirements in terms of the Tender document.

17.2.3.            Changes to the bidder submission will not be allowed after the closing date of the Tender.

17.2.4.            All Bid Responses will be regarded as binding offers unless the bidder indicates otherwise.

17.2.5.            Each bidder shall be entitled to submit or participate in one bid.

17.2.6.            No bidder or any of its consortium/joint venture members may have an interest in any other bidder/joint venture/consortium participating in the bid.

17.3.          Significantly, the Bid specified a validity period (1.8 of the RFB) and provided as follows:

“ACSA requires a validity period of one hundred and twenty (120) business/working dates calculated from the closing date for Bid submission. During the validity period of the tender the prices which have been quoted by the bidder must remain fixed, firm and valid for a minimum of twelve months.”

17.4.          Bidders were informed that sixteen security companies would be appointed to the panel of licensed security companies. The sixteen would be appointed in accordance with three scales based on their operating turnover.^[5]

17.5.          In respect of phase 2, the price and preference would be evaluated once the panel has been approved by the ACSA National Adjudication Committee and appointed accordingly.

17.6.          ACSA reserved the right to disqualify bidders from the Tender process who had failed to submit mandatory returnable documents and information on the closing date and time of the bid. Moreover, bidders had to ensure that any document or information submitted in pursuance of their tender was valid by the closing date and time of the Tender.

17.7.          As mentioned earlier, the validity period of the Tender was for 120 business/working days calculated from the closing date for bid submission. ACSA purported to extend the validity period from 24 August 2023 to 29 September 2023, and then later, to 31 October 2023. ACSA contends that these extensions were done in compliance with Supply Chain Management Procedures. The Applicants contend that such extensions were unlawful. This forms the major ground upon which all of the Applicants rely in their respective anticipated review proceedings.

THE RELIEF SOUGHT BY THE APPLICANTS^[6]

18.         The relief sought by all the Applicants is similar and substantially overlap. In summary –

18.1.          They seek an order that pending the final determination of the review applications, ACSA is directed to suspend the implementation of any acts taken in terms of the procurement process relating to the Tender, including, the suspension of any rights acquired by the New Panel,^[7] the suspension of ACSA licences awarded to members of the New Panel, and the suspension of any allocations made to members of the New Panel.

18.2.          The Applicants also seek an order directing ACSA to maintain the status quo in relation to the Applicants’ positions on ACSA’s panel.

18.3.          The relief sought goes further in that a mandatory interdict is sought –

18.3.1.            G4S seeks an order that ACSA is directed to afford G4S all the rights and entitlements that ordinarily flow from the holding of a valid ACSA license;

18.3.2.            Venus seeks an order that ACSA be ordered to extend its existing Security Service Provider’s contracts, and to retain the status quo in the interim and to provide interim security services at the airports owned and managed by ACSA, pending the outcome of the review;

18.3.3.            That ACSA be ordered to extend Venus’ current licence/accreditation, alternatively issue an interim licence to Venus to be able to provide security services at airports operated by ACSA;

18.3.4.            Fidelity seeks an order directing that ACSA take all actions necessary to allow Fidelity to continue to provide security services at the sites they are currently servicing on the same terms and conditions as those which are currently in place under the existing contract.

18.4.          The Applicants argue the following:

18.4.1.            The failure of ACSA to obtain the consent of the bidders for the extension of the validity period of their bids was a cardinal error, which vitiates the entire tender process.

18.4.2.            Fidelity’s exclusion from the New Panel based on financial sustainability was the result of a flawed conclusion.

18.4.3.            There was non-compliance with the B-BBEE Act (Broad-based Black Economic Empowerment Act 53 of 2003).

18.4.4.            There was non-compliance with the PPPFA (Preferential Procurement Policy Framework Act 5 of 2000) and the regulations.

18.4.5.            The Tender document is vague and ambiguous.

18.4.6.            Failure on the part of Mzansi to meet the minimum pre-qualification criteria.

18.4.7.            Quatro contends that the extension of any contracts with the Applicants pending the review without following the lawful procurement process is unconstitutional and will be invalid.

 

THE INTERIM INTERDICT AND LAW APPLICABLE TO THE PRESENT APPLICATIONS

19.         At the outset, it is plain that in deciding whether the Applicants are entitled to the interdictory relief sought, regard must be had, inter alia, to the impending review applications and the prospects of success. I however remain alive to the need to avoid deciding the grounds of review which decision (were I to make one) would in any event, not be binding upon a court hearing the review, either in respect of facts I may find or on the law.

20.         It is not necessary to furnish a dissertation on interim interdicts and the requirements to be satisfied by an applicant seeking relief on an interim basis. The requisites are well-known and were set out already in 1914 in Setlogelo v Setlogelo:^[8]

“a.        a prima facie right;

b.         a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

c.         that the balance of convenience favours the granting of an interim interdict;

d.         that the applicant has no other satisfactory remedy.”

21.         I do however emphasise certain principles apposite to this case. Firstly, it is pertinent to repeat what the Constitutional Court stated in National Treasury and Others v Opposition to Urban Tolling Alliance and Others (“OUTA”)^[9]

“[44]        The common law annotation to the Setlogelo test is that courts grant temporary restraining orders against the exercise of statutory power only in exceptional cases and when a strong case for that relief has been made out. Beyond the common law, separation of powers is an even more vital tenet of our constitutional democracy. This means that the Constitution requires courts to ensure that all branches of Government act within the law. However, courts in turn must refrain from entering the exclusive terrain of the Executive and the Legislative branches of Government unless the intrusion is mandated by the Constitution itself.

[45]          It seems to me that it is unnecessary to fashion a new test for the grant of an interim interdict. The Setlogelo test, as adapted by case law, continues to be a handy and ready guide to the bench and practitioners alike in the grant of interdicts in busy Magistrates’ Courts and High Courts. However, now the test must be applied cognisant of the normative scheme and democratic principles that underpin our Constitution. This means that when a court considers whether to grant an interim interdict it must do so in a way that promotes the objects, spirit and purport of the Constitution.

[46]          Two ready examples come to mind. If the right asserted in a claim for an interim interdict is sourced from the Constitution it would be redundant to enquire whether that right exists. Similarly, when a court weighs up where the balance of convenience rests, it may not fail to consider the probable impact of the restraining order on the constitutional and statutory powers and duties of the state functionary or organ of state against which the interim order is sought.

[47]          The balance of convenience enquiry must now carefully probe whether and to which extent the restraining order will probably intrude into the exclusive terrain of another branch of Government. The enquiry must, alongside other relevant harm, have proper regard to what may be called separation of powers harm. A court must keep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication of a claimant’s case may be granted only in the clearest of cases and after a careful consideration of separation of powers harm. It is neither prudent nor necessary to define “clearest of cases”. However one important consideration would be whether the harm apprehended by the claimant amounts to a breach of one or more fundamental rights warranted by the Bill of Rights. This is not such a case.”

22.         Secondly, to establish a prima facie right, it is not sufficient for an applicant to claim the right to approach a court in order to review an administrative decision. “It is a right to which, if not protected by an interdict, irreparable harm would ensue.”^[10]

23.         Thus, the prima facie right is inextricably linked to irreparable harm, the apprehension of which must be determined objectively.

24.         Extensive argument was advanced in the proceedings before me concerning whether the Applicants have established a prima facie right. I will deal with this later, but I take guidance from what is stated by Binns-Ward J in City of Cape Town v South African National Roads Agency Ltd and Others^[11]

“In a matter like the current case, in which the interim relief is sought pendentelite, the right in question is bound up in the substantive remedy sought in the principal proceedings, which, as counsel were agreed, is not to be confused with the mere right to approach the court for substantive relief in the principal proceedings. Thus the existence of the prima facie right, and the extent to which its certainty is open to doubt, fall to be determined with reference to the applicant’s prospects of success in the principal proceedings - as far as it is possible at this stage to assess them. The mere existence of the right falls to be determined by considering the facts as set out by the applicant together with any facts set out by the respondent which the applicant cannot dispute, and deciding whether, with regard to the inherent probabilities, the applicant should on those facts obtain final relief in the main case. The degree to which the existence of the right is open to doubt falls to be weighed by the court with the considerations affecting the balance of convenience in exercising its discretion whether to grant or refuse interim relief; the more certain the prospects of success (i.e. the stronger the case), the more inclined the court will be to grant the interim remedy; the less certain, the greater the weight that will be attached to the balance of convenience – an approach that has as its logical conclusion that if the right is certain the balance of convenience becomes irrelevant and an entitlement to final relief is established.”

25.         We are concerned in this matter with a tender process governed by section 217 of the Constitution which requires procurement by an organ of state to be conducted in accordance with a system which is fair, equitable, transparent, competitive and cost effective. Allied to this is everyone’s right to administrative action that is lawful, reasonable and procedurally fair.^[12]

26.         In this vein, ACSA’s Tender Preparation and Evaluation Committee (TPEC) is obliged to act lawfully and fairly and not arbitrarily. It has to act honestly and ethically, and is accountable if it does not do so.^[13] It is in the interests of good administration that the TPEC follow proper procedures and act fairly, and does not act in an arbitrary manner.

27.         The Constitutional Court stated in OUTA that the common law annotation to the Setlogelo test is that courts grant temporary restraining orders against the exercise of statutory power only in exceptional cases and when a strong case for that relief has been made out.^[14] Furthermore, “(a) court must keep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication of a claimant’s case may be granted only in the clearest of cases and after a careful consideration of separation of powers harm.”

HAVE THE APPLICANTS SATISFIED THE REQUIREMENTS FOR AN INTERIM INTERDICT?

28.         Argument on behalf of the Applicants was presented first by G4S, then by Venus and finally Fidelity. Argument was also presented on behalf of Quatro which took no issue with the interim suspension of the implementation of the Tender – as sought by the Applicants – but opposed the relief regarding continued service delivery by the Applicants. In argument, counsel for Quatro drifted outside the ambit of the issue in respect of which leave to intervene was granted. There was objection from the Applicants when he sought to do so, which objection I upheld.

29.         Due to the overlap of argument between the Applicants, much of the argument was made on behalf of G4S. This was endorsed by the other Applicants who made some additional submissions peculiar to their cases which were not covered by G4S. In essence, the Applicants’ argument regarding a prima facie right and irreparable harm was covered by G4S.

30.         The prima facie right which the Applicants rely upon is their right to fair, lawful and reasonable administrative action. They argue that this right is threatened by the unlawful procurement process followed by ACSA. The Applicants argue that tenderers have a right to a fair tender process irrespective of whether they are ultimately awarded the Tender. The Applicants further argue, with reference to City of Cape Town, supra, that the existence of the prima facie right is bound up in the substantive remedy sought in the principal proceedings.

31.         Counsel for G4S emphasised that the prima facie right claimed is not a right to a licence, but rather the right to fair administrative action.

32.         G4S submits that it will suffer irreparable harm, absent the interim relief because it will be precluded from continuing to provide security services at ACSA-operated airports. The Applicant will also be unable to bid on contracts at ACSA-operated airports, the bulk of which are concluded at the time that ACSA announces its new licence holders. Venus similarly contends that it will suffer irreparable harm in that it will be excluded from any security contracts should the decision of the TPEC not be suspended pending the review application. Fidelity submits that if the interim interdict is not granted, the successful tenderers on the New Panel will commence services immediately, resulting in the substantial work that Fidelity should have done being lost. Such loss will be irrecoverable.

33.         If any one of the Applicants is successful in obtaining an interim interdict, that interdict will be effective in respect of all of the Applicants. It is obvious that the Tender cannot be suspended in respect of one of the Applicants and not the others.

34.         Importantly, in respect of irreparable harm, I take cognisance of what ACSA itself says in its answering affidavit:^[15]

“The tender is to run for a period of 5 years. Where this Court ultimately makes its determination in the review, including any subsequent appellate Court, a period of 5 years would have lapsed and/or the entire process would be very close to taking 5 years to finalise. … A successful review application will be of academic interest….”

35.         This statement envisages that any review proceedings would take a number of years and, as submitted by G4S, by the time the relief in the review application is decided, the right will be rendered academic and nugatory as the Tender would have been completed by ACSA and its stakeholders. As appears from ACSA’s statement quoted above, the successful review application will indeed then be of academic interest. Even if the Applicants are subsequently successful, they would have suffered irreparable harm with no alternative claim for damages.

36.         Even if the requisites for an interim interdict have been established, I retain a wide discretion to refuse the relief. As stated by the Appellate Division in Knox D'Arcy Ltd. and Others v Jamieson and Others^[16] this means no more than that the Court is entitled to have regard to a number of disparate and incommensurable features in coming to a decision. The discretion is a judicial discretion upon consideration of all the circumstances and particularly upon a consideration of the probabilities of success of the Applicants in their reviews.

37.         Whilst each of the Applicants have raised different grounds to review the decision, there is one ground common to all of them, that is, whether the validity period of the Tender was lawfully extended. It is a well-established principle that if an administrative body takes into account any reason for its decision which is bad, or irrelevant, then the whole decision, even if there are other good grounds for it, is vitiated.^[17]

38.         The same principle applies where during the process a material unlawful decision is taken which destroys the Tender process. This is indeed the case advanced by the Applicants who submit that the whole Tender process collapsed once the validity period was unlawfully extended.

39.         It is common cause that ACSA failed to finalise the Tender and make the decision within the original tender validity period of 120 days, which expired on 24 August 2023. ACSA purported to extend the validity period on two further occasions: once to 29 September 2023, and thereafter to 31 October 2023.

40.         The rationale for a validity period is found in the fact that bidders submit offers with prices. These prices are kept fixed (unless a bidder withdraws its entire tender) until the end of the validity period. It need hardly be stated that a bidder cannot be held to a price if a decision is made outside of the validity period. The bid would have come to an end based on the expiry of the specified validity period in the RFB.

41.         The principle that a validity period cannot be unilaterally extended was stated as follows by the SCA in City of Ekurhuleni Metropolitan Municipality v Takubiza Trading & Projects CC and Others^[18]

“To extend the tender validity period, the consent of all the participants to the tender process is required. Unless there is a timeous request and favourable response from all the tenderers prior to the expiry of the tender, the tender comes to an end.”

42.         ACSA’s initial view that the consent of the tenderers was not required to extend the Tender validity period was wrong.^[19]

43.         During the hearing, it was submitted on behalf of ACSA, as I understood the argument, that there was tacit consent. However, ACSA’s difficulty with this is the following:

43.1.          Firstly, the letters sent by ACSA bore the caption “NOTICE OF EXTENSION OF BID VALIDITY PERIOD”. The recipients of the letters were advised that if they have any objections to the extension, they should contact the person whose name is indicated at the end of the letters. Without further evidence, and on the papers before me, more would be required to establish a tacit contract.

43.2.          A more profound difficulty facing ACSA is that, on the papers before me, it appears that not all the tenderers were sent the notice of extension. Certainly Venus states that it did not receive notification of the last extension, which is not disputed.

44.         In Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another^[20] the court stated that provided there is a prospect of success, there is no further threshold which must be crossed before proceeding to a consideration of the other elements of an interim interdict.

45.         On the basis of what has served before me, I am of the view that there is a strong case that the review will be successful on this ground alone.

46.         There are other grounds relied upon by the Applicants:

46.1.          G4S submits that they should not have been excluded on the basis of the failure to furnish a Firearms Transportation Permit. It was argued that bidders need have only submitted valid proof of their applications for a permit. G4S contend that they satisfied this requirement and that the TPEC ignored or overlooked this fact. They were excluded on this basis alone.

46.2.          The Applicants state that the process was flawed in that Reshebile Aviation and Protection Services (Pty) Ltd (Reshebile) was a successful bidder but was in fact insolvent. ACSA respond by saying that they were not aware at the time that Reshebile was insolvent. However, the Applicants contend that Reshebile failed to submit a declaration of insolvency which was required by the RFB. The TPEC did not insist upon compliance with its own requirements.

46.3.          Mzansi was also a successful tenderer, but the Applicants complain that it failed to satisfy the mandatory requirement in the RFB that a company have a minimum of at least five years “proof of security experience”.^[21]

47.         In view of my finding regarding the prospects of success on review, based on the extension of the validity period, it is not necessary for me to delve into the prospects of the other issues. I refrain from doing so with deference to the principle in Geyser v Nedbank Limited and Others^[22] that a legal issue should only be decided at the interlocutory stage of the proceedings if it would result in the final disposal of either the matter as a whole or a particular aspect thereof.

 

DISCRETION

48.         The contracts of the Applicants expired on 31 October 2023. They have continued to provide services based only on the undertaking given pending the hearing before me. The following conundrum now arises:

48.1.          If an interdict is not granted ACSA will continue to deal with the successful tenderers. To this end, ACSA will need to enter into contracts with the successful tenderers from the New Panel. Thereafter, these tenderers will have to gear up, so to speak, to provide the required services. In the interim, there has to be a continuation of the services at the airports ACSA serves, bearing in mind that this is a national key point.

48.2.          If the interdict is granted, ACSA will not be able to contract with the successful tenderers until at least the outcome of the review, if the review is unsuccessful.^[23] In the interim, what is to happen? I do not have the power to order the Applicants to continue rendering services which would have to be performed in terms of contracts with ACSA. These contracts have expired and therefore new contracts would have to be entered into. This I cannot order.

48.3.          As argued on behalf of Quatro, ACSA cannot simply appoint the Applicants to provide the services. Doing so would amount to an unlawful procurement process. In support of this submission, reference was made to Department of Transport and Others v Tasima (Pty) Limited;^[24] Minister of Transport NO v Prodiba (Pty) Ltd.^[25] A contract with an organ of state cannot be extended in the absence of a lawful procurement process. It was submitted on behalf of Quatro that ACSA requires continuous security services, and it can only do so lawfully by embarking on an informal procurement process in terms of Treasury Regulation 16A.6.4 which provides:

“16A.6.4     If in a specific case it is impractical to invite competitive bids, the accounting officer or accounting authority may procure the required goods or services by other means, provided that the reasons for deviating from inviting competitive bids must be recorded and approved by the accounting officer or accounting authority.”

48.4.          The Treasury Regulation^[26] entitles ACSA to procure services on an emergency basis by deviating from the prescribed tender process. Quatro, an unsuccessful tenderer, frankly states that it will then have an opportunity of participating in such interim tender process.

 

49.         In Bengwenyama Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and Others,^[27] the Constitutional Court stated:

“The apparent anomaly that an unlawful act can produce legally effective consequences is not one that admits easy and consistently logical solutions. But then the law often is a pragmatic blend of logic and experience. The apparent rigour of declaring conduct in conflict with the Constitution and PAJA unlawful is ameliorated in both the Constitution and PAJA by providing for a just and equitable remedy in its wake.”^[28]

50.         In the exercise of my discretion I must consider the nature of the harm which ACSA, on the one hand, will suffer if the application is granted and ACSA should ultimately turn out to be right, and that which the Applicants, on the other hand, might sustain if their applications are refused and they should ultimately turn out to be right. I must in this regard take into account the balance of convenience.

51.         I am alive to my duty to keep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication of the review may be granted only in the clearest of cases and after careful consideration of separation of powers.^[29] Weighing up where the balance of convenience rests, I have considered the probable impact of the interdictory relief on the constitutional and statutory powers and duties of ACSA. My conclusion, is that the balance of convenience favours the Applicants.

52.         I have also arrived at this conclusion after my endeavours during the hearing to get confirmation from ACSA that it would able to provide the necessary services, as a national key point, during the interim period. It was indicated that ACSA would indeed be able to carry out its functions and counsel for ACSA said that an affidavit regarding interim arrangements would be filed. However, there was immediate objection from the Applicants to any affidavit being filed at such late stage. ACSA did not at the time persist in seeking to file a further affidavit.^[30]

53.         I conclude in the result that the Applicants have satisfied the requirements some of the interdictory relief they seek, and that in the exercise of my discretion an appropriate order should be made.

REGULATING FURTHER PROCEEDINGS

54.         I indicated to the parties that I did not intend to allow the review process to take its ordinary course which may take a long time to finalise, and that I would exercise my power to regulate the proceedings. I required the parties to agree upon dates for the filing of affidavits on an expedited basis in respect of the review brought by the Applicants.

55.         Quatro has not yet brought a review but indicated that it would be doing so on the narrow basis concerning the unlawfulness of the validity extension. I was told Quatro intends to do this on a semi-urgent basis and I make no order in regard to that intended application.

56.         Whilst the parties acceded to my request to provide dates for the further conduct of the review, I intend making those dates part of my order so as to ensure compliance therewith by the parties so that the review is brought to finality as soon as possible. There may be appeals following the review but I do not intend to extend the interdict beyond judgment in the review application. If there are any appeals it will remain open to the parties to seek, if they so wish, an expedited appeal hearing and any other concomitant relief they deem appropriate.

 

ORDER

A.           Pending judgment in this Court in the consolidated reviews brought by the Applicants (G4S, Venus and Fidelity) to set aside the decisions taken by ACSA relating to Tender COR7070/2023/RFB ("the Tender”), I make the following Order:

(1)            ACSA is directed to suspend the implementation of any acts taken under or in terms of the procurement process relating to the Tender, including but not limited to the suspension of any rights acquired by the New Panel (the nine successful tenderers);

(2)            The licences awarded to Tenderers on the New Panel are suspended;

(3)            Any allocations made to members of the New Panel by ACSA pursuant to the procurement process relating to the Tender or in relation to the newly awarded licences, are suspended;

(4)            The New Panel members are interdicted from concluding contracts with ACSA and/or ACSA’s stakeholders pursuant to the procurement process relating to the Tender or in relation to the newly awarded ACSA licences.

(5)            It is declared that insofar as any of the Applicants’ licences expired by virtue only of the decision not to appoint the Applicants to the New Panel in terms of the First Phase of the Tender procedure, such licences remain extant.

B.           In regard to the further conduct of the review proceedings the following order is made:

(6)            ACSA is to provide the Record of Decision by 31 January 2024.

(7)            The Applicants are to file supplementary affidavits by 1 March 2024.

(8)            Answering affidavits are to be filed by 5 April 2024.

(9)            Replying affidavits are to be filed by 19 April 2024.

(10)         The Applicants are to file heads of argument by 10 May 2024.

(11)         The Respondents are to file heads of argument by 24 May 2024.

C.           The costs of the application are reserved for determination by the court hearing the review.

 

________________

EPSTEIN AJ

6 December 2023

 

DATE OF HEARING:                   28 and 29 November 2023

 

DATE OF JUDGMENT:                 6 December 2023

 

PARTIES:

 

G4S’s Attorney:  Webber Wentzel 

M Philippides (011 530 5374; 083 408 7066) maria.phillipides@webberwentzel.com 

 

T Versfeld (011 530 5352; 083 325 248527) trevor.versfeld@webberwentzel.com 

 

G4S’s Counsel: J P V McNally SC (082 490 4123) 

mcnally@law.co.za

 

D Smith (083 228 1689)  dsmith@counsel.co.za 

Venus’ Attorney:                     SDH Attorneys 

Ms A Ruszkowsk 

aneta@sdhattorney.co.za

 

Fidelity’s Attorney:                  Dirk Kotze Attorneys

dirk@dkotze.co.za               

 

Fidelity’s Counsel:                  S Grobler SC

                                               P Volmink

 

Quatro’s Attorneys:                Jansen van Rensburg

PL Jansen van Rensburg (083 488 0816)

lou@jvrandpartners.co.za; jana@jvrandpartners.co.za

 

Quatro’s Counsel:                    APJ Els (083 455 6579)

                                                 apjels@law.co.za

                                                 NG Louw

 

ACSA’s Attorney:                      Mashiane, Moodley & Monama Inc 

Ref: Mr Maphakela (011) 303 7900 

 

ACSA’s Counsel:                       V Maleka SC (083 260 0790)

ivmaleka@mweb.co.za        

 

F Karachi (072 4700 0041)         farzanahk@icloud.com      

 

K Mvubo (084 670 6355)             advmvubo@rsabar.com

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